PowerPoint Presentation

ORIGIN & HISTORY:WRITS OF AMPARO &HABEAS DATA* It took many years before the Writ of Amparo and Writ of Habeas Data were adopted after the Writ of Habeas Corpus1

WRIT OF AMPARO(year 2007)WRIT OF HABEAS CORPUS(year 1901)WRIT OF HABEAS DATA(year 2008)JUDICIAL REMEDIES AVAILABLE in the PHILIPPINESStarted in 1901 in the Philippines Roughly translated, You should have the body It originated in the Middle Ages in England Historically, Philippine Habeas Corpus (from 1901 until the present) miserably failed to produce efficacious legal remedy for victims of extrajudicial killings and enforced disappearances* adopted thru AM No. 07-9-12-SC on October 24, 2007* The word amparo comes from the Spanish word amparar which literally means to protect. Adopted thru AM No. 08-1-16-SC on February 2, 2008Habeas data literally means you should have the data* It took many years before the Writ of Amparo and Writ of Habeas Data were adopted after the Writ of Habeas Corpus2WRIT OF AMPAROs ORIGINManuel Crescendo Rejonknown to have drafted the first Writ of Amparo Journalist, Mexican lawyer & PoliticianMexico was a colony of Spain and when it was liberated from the Spanish authorities resulted to Mexicos IndependenceA Senator of the State of Yucatan

3WRIT OF AMPAROs ORIGINManuel Crescendo Rejon attacks and strongly criticizes Agustn de Iturbide (a Mexican army general and politician) who proclaimed himself emperor of Mexico, so when Iturbide dissolved Congress, Rejon became one among the jailed senators. When Iturbide resigned and was put into exile, Congress raised the question of a new constitution. This was when REJON wrote the amparo in his State of Yucatan (who even threatened independence from Mexico)

4WRIT OF AMPAROs ORIGIN"The term Amparo was first used in the Constitution of Yucatn, developed by Manuel Rejon in (1841), which was established as a power of the people to protect the enjoyment of their rights violated by laws or acts of government authorities.

5WRIT OF AMPAROs ORIGINThe writ of amparo was later incorporated in Mexicos Federal Constitution in 1857.Today, Yucatn is the safest state in MexicoAmparo, spread throughout the Western Hemisphere where it has gradually evolved into various forms, depending on the particular needs of each country.

After the Spanish conquest, Yucatn Peninsula was a single administrative and political entity, the Captaincy General of Yucatn. Following independence and the breakup of the Mexican Empire in 1823, the first Republic of Yucatn was proclaimed which then was voluntarily annexed to the Federal Republic of United Mexican States on December 21, 1823.[3] Later on March 16, 1841, as result of cultural and political conflicts around the federal pact, Yucatn declared independence from Mexico to form a second Republic of Yucatn, but eventually on July 14, 1848, Yucatn was definitely rejoined to Mexico. In 1858, in the middle of the caste war, the state of Yucatan was divided for the first time, establishing Campeche as separate state (officially in 1863). During the Porfiriato, in 1902, the state of Yucatan was divided again to form the Federal territory that later became the present state of Quintana Roo.[14]

Today, Yucatn is the safest state in Mexico[15][16] and Mrida was awarded City of Peace in 2011.[17][18]

6

WRIT OF AMPAROs ORIGINStarting as a protective writ against acts or omissions of public authorities in violation of constitutional rights, it later on blossomed as a remedial tool having several purposes:

(1) For the protection of personal freedom, equivalent to the habeas corpus writ (called amparo libertad); (2) For the judicial review of the constitutionality of statutes (called amparo contra leyes); (3) For the judicial review of the Constitutionality and legality of a judicial decision (called amparo casacion); (4) For the judicial review of administrative actions (called amparo administrativo); and (5) For the protection of peasants rights derived from the agrarian reform process (called amparo agrario).

These 5 legal departments of the amparo were applied by different countries

About AMPARO ADMINISTRATIVO:- THE SUCCESS OF LAND REFORM PROGRAM of Mexico was due in large measure to the writ of amparo of Mexico, which, under its Consitution, is available to CHALLENGE decisions of agricultural authorities that effect the rights of their FARMING COOPERATIVES (ejidos) or rights of their FARMING MEMBERS (ejidatarios) , under the Constitutionally-established agrarian reform system of said country. (Professor Zamudio Director of Institute of Legal Research at the National University of Mexico, cited by Azcuna in his Journal in ALJ)7

WRIT OF AMPAROs ORIGINAFTER MEXICO (1857): El Salvador (1886)Honduras (1894)Nicaragua (1911)Guatemala (1921)Panama (1941)Costa Rica (1941)Argentina in the Constitution of the Province of Santa Fe (1921)Venezuela (1967)

It spread to other parts of the world: INDIA (1965)

8

WRIT OF AMPAROs ORIGINInter-American Declaration of Human Rights:

Art. XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should be likewise available to him a simple, brief procedure whereby the courts will protect (Amparo in Spanish) him from acts of authority that, to his prejudice , violate any fundamental constitutional rights.Universal Declaration of Human Rights:

Art. VIII. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by the law. Finally, the writ of amparo was raised to an international level by its inclusion in Art 18 of the Inter-American Declaration of Human Rights (regional convention in Bogota, 1948)

Finally Amparo first found expression in a multilateral instrument of universal application in the Universal Declaration of Human Rights which was approved by the General Assembly of the United Nations (December 10, 1948)9

The PhilippinesWRIT OF AMPARO Chiej Justice Puno, also known to be an activist, by his leadership of the Puno Court, made into effect the Rules for Writ of Amparo and Writ of Habeas Data. On July 16-17, 2007 he sponsored the holding of the NATIONAL CONSULTATIVE SUMMIT ON EJK AND ED attended by justices, activists, millitants leaders, police officials and prelates. The first proposal in the Summits recommendation, was for the writ of amparo to be operationalized in the Philippines.

Should the Supreme Court be activist, as is happening now? Some people question the enactment of the Rule of WoA because creation of laws is only lodged in the legislative branch:But J. Azcuna answered: The Constitution provides that it is the power and duty of the courts to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The exercise of this power and duty makes the courts activists. according to Azcuna in an interview in Phil Star

According to NUPLs (National Union of Peoples Lawyers) Atty. Neri Colmenarez: The Rule on Habeas Data, and Writ of Amparo were born in the midst of worsening human rights condition in the country through extra-judicial killings, enforced disappearance and torture. The government of Pres. Gloria Arroyo, through its security forces were believed to be under Oplan Bantay Laya and filing various criminal charges against political opponents and members of the media, considered as political harassment suits. Habeas data was, therefore, promulgated AFTER Writ of amparo within the context of government compilation of information on individuals on the basis of non transparent and credible sources promoting fear among many that the said information will be used and abused to harass legitimate dissenters. It was issued at the time that efforts to impose a national ID system has fanned fears among human rights advocates of governments attempt to establish an Orwellian big brother to stifle dissent .

10

PRIME MOVER OF WRIT OF AMPARO:PUNO COURT

JUSTICE ADOLFO AZCUNACHIEF JUSTICE REYNATO PUNO11

Father of AmparoJustice Adolfo AzcunaHe introduced the Writ of Amparo in Bar Exam 1991 (Political law)A delegate of the 1971 Constitutional Convention and 1986 Constitutional Commission

The idea of the writ of amparo was first introduced to the Philippines by Justice Azcuna, a former delegate in the Constitutional Convention of 1971 and the 1986 Constitutional Commission.

Despite his best efforts he did not succeed in convincing the two bodies to include in our fundamental law an EXPLICIT REFERENCE to the writ of amparo.

Azcuna comes from Zamboanga. He graduated with honors from the Ateneo de Manila, placed fourth in the bar exams in 1962. He was a member of the 1971 Constitutional Convention and, yet again, of the 1986 Constitutional Commission. As early as the 1971 Convention he already began working for the adoption of the writ in the nations fundamental law. He was 32 at the time.Azcuna was spokesperson to President Corazon Aquino and later Press Secretary until 1991 and Presidential Legal Counsel from 1987 to 1991. President Gloria Macapagal Arroyo appointed him to the Supreme Court in October 2002.

12

1986 CONSTITUTIONAL COMMISSIONIn the 1986 Constitutional Commission --- members were appointed and Cecilia Munoz Palma was the Chairman

There were diffferent commitees in the 1986 Constitutional Commission, one was the Judiciary Committee where CJ Roberto Concepcion was the Chairman.13

Philippines WRIT OF AMPAROThe 1987 Constitution enhanced the protection of human rights by giving the Supreme Court the power to [p]romulgate rules concerning the protection and enforcement of constitutional rights... (ARTICLE VIII, SECTION 5(5) CONSTITUTION)

CHIEF JUSTICE ROBERTO CONCEPCIONWHY DID IT APPEAR ALREADY IN THE 1991 BAR EXAM? In the 1986 Consitutional Commission, although there is no explicit reference, the Committee on Judiciary headed by former Chief Justice Roberto Concepcion explained that the writ of amparo is deemed included in the provision of the Constitution: Art 8, Sec 5(5) where it empowers the SC to Promulgate rules concerning the protection and enforcement of constitutional rights.

The 1987 Constitution, gave the the Supreme Court the additional power to promulgate rules to protect and enforce rights guaranteed by the fundamental law of the land. This, according to J. Azcuna, is the basis why the SC is able to enact laws particularly the Rules of Amparo and Habeas Data.

According to J. Azcuna, it was the no. 1 question in the Political Law exam, and only 20% of the examinees got the correct answer to the question: What is the writ of amparo and what is the basis of this rule in the Consitution.

14

This rule-making power (ARTICLE VIII, SECTION 5(5) CONSTITUTION) unique to the present Constitution, is the result of our experience under the dark years of the martial law regime.

CHIEF JUSTICE ROBERTO CONCEPCIONPhilippines WRIT OF AMPARO

JUSTICE ADOLFO AZCUNAIn Azcunas 1993 ALJ Article: Azcuna already expressed that cannot be effectively safeguarded merely by incorporating them in the Constitution. He said many lawyers today consider that human rights may be effectively guaranteed by SPECIFIC PROCEDURES in their protection.

In an article in Philippine Star: - Shortly after assuming his Supreme Court robe, Adolf Azcuna journeyed to South America to see how the Amparo Writ operates in that continent, notably in Mexico and Argentina. It also works in India and in the state of Minnesota in the United States. In fact, it is now included in the Protocol of the United Nations.

As a postgraduate in International Law and Jurisprudence of the University of Salzburg in Austria, Azcuna has long been familiar with the writ and its necessary adoption in the Philippines. In the dictatorships in South America and, in more recent times, particularly during the Marcos regime, the salvaging of so-called enemies of the state and the unexplained disappearance of hundreds these dictatorial brutalities demanded it.

15What is the Philippine version of Amparo?Broader than the Mexican AmparoSECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.

According to a Journal (PLJ) written by two law clerks of Chief Justice Puno (who are Gozon and Orosa), the journal made it clear that the Supreme Court Committee on Rules during a meeting in 2007 that the writ of amparo shall cover only EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES --- that is why an additional sentence was added to the last part of the section which is xxx.

EXTRALEGAL KILLINGS and not EXTRAJUDICIAL KILLINGS was the term used because as the term is used in United Nations Instruments, extralegal killings are killings committed without due process of law, i.e. without legal safeguards or judicia lproceedings.

16

WRIT OF HABEAS DATAS ORIGINto have the data17WRIT OF HABEAS DATAS ORIGINIt has the shortest history.The roots of the writ of habeas data can be traced to certain European legal mechanisms:German Constitutional Tribunal Council of Europes 108th Convention on Data Protection of 1981.

* The habeas data writ itself has a very short history, but its origins can be traced to certain European legal mechanisms that protected individual privacy.

In particular, certain German constitutional rights can be identified as the direct progenitors of the Habeas Data right. In particular, the right to information self-determination was created by the German Constitutional Tribunal by interpretation of the existing rights of human dignity and personality . This is a right to know what type of data are stored on manual and automatic databases about an individual, and it implies that there must be transparency on the gathering and processing of such data.

The other direct predecessor of the Habeas Data right is the Council of Europes 108th Convention on Data Protection of 1981. The purpose of the convention is to secure the privacy of the individual regarding the automated processing of personal data. To achieve this, several rights are given to the individual, including a right to access their personal data held in an automated database.

18WRIT OF HABEAS DATAS ORIGINThe scope and concept of this writ vary from country to country; but in general, it is designed to protect by means of an individual complaint presented to a constitutional court the image, privacy, honor, information self-determination and freedom of information of a person.

Latin American countries:Brazil (1988)Colombia (1991)Paraguay (1992)Peru (1993)Argentina (1994)Ecuador (1996)

The first Latin American country to adopt the writ of habeas data is the Federal Republic of Brazil in 1988. Following the Brazilian example, Colombia incorporated the habeas data right in its 1991 Constitution. In due time, many countries followed suit and adopted the new legal tool in their respective constitutions: Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996.

19WRIT OF HABEAS DATAS ORIGINThe Argentine version, is more comprehensive than other Latin American models.

Any person may file this action (referring to the writ of habeas data) to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.

* As we proceed we will learn that we adopted that Argentinian Provision20Philippines version of WRIT OF HABEAS DATA

Sec. 16. JudgementIf the allegations in the petition are proven substantial, the court shall enjoin the act complained of, or order the deletion, destruction or rectification of the erroneous data or information and grant other reliefs as may be just and equitable (which is also one of the reliefs prayed for in the petition under Sec. 6)SEC. 10. Return; Contents. The respondent shall file a verified written return The return shall, among other things, contain the following:(b) In case of respondent in charge, in possession or in control of the data or information subject of the petition;(i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection;(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and,(iii) the currency and accuracy of the data or information held; and,(c) Other allegations relevant to the resolution of the proceeding.21

They COMPLEMENT!WRIT OF HABEAS DATAWRIT OF AMPAROIf the police or military, for instance, conduct a haphazard investigation or one with illegal or malicious intent, they could hide or disregard data relevant to the solution of the killing or the disappearance. The writ can be used to produce information so that the families of the victims, especially those of the disappeared, will have a better picture of his fate despite the perpetrators efforts to hide the details

22

Writ of Habeas Data = Writ of Amparo.

It complements the Writ of Amparo. According to Chief Justice Reynato Puno, the writ of habeas data complements the writ of amparo by helping produce or correct data that is relevant to protect the rights of a person who disappeared or is the victim of an extrajudicial killing.

If the police or military, for instance, conduct a haphazard investigation or one with illegal or malicious intent, they could hide or disregard data relevant to the solution of the killing or the disappearance. The writ can be used to produce information so that the families of the victims, especially those of the disappeared, will have a better picture of their fate despite the perpetrators efforts to hide the details

23

Hindi ako mukhang mataray, pero kaya ko ring maging mataray kung kailanganSupreme CourtChiej Justice Puno, also known to be an activist, by his leadership of the Puno Court, made into effect the Rules for Writ of Amparo and Writ of Habeas Data. And the creation of these laws made the Supreme court controversial.

Should the Supreme Court be activist? Some people question the enactment of the Rule of WoA because creation of laws is only lodged in the legislative branch

But J. Azcuna answered (Phiil. Star: The Constitution provides that it is the power and duty of the courts to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The exercise of this power and duty makes the courts activists. and allows them to enact laws such as the WoA and WHD 24